AGO Opinion Topics: ABORTIONS

An Advanced Registered Nurse Practitioner may, when consistent with his or her professional license, lawfully furnish or prescribe a drug to a woman for the purpose of inducing an abortion where the drug may lawfully be prescribed and the woman seeks to terminate her pregnancy before the fetus is viable or for the purpose of preserving the woman’s life or health

The pregnancy of an unmarried female under 18 years of age may be terminated in accordance with chapter 3, Laws of 1970 (Referendum No. 20), if all other conditions set forth therein are met, on the basis of her own consent and that of her parent as her legal guardian, unless some other person has been appointed by the court to serve as her legal guardian.

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The State Board of Health, acting pursuant to RCW 9.02.070, may sanction the performance of second trimester abortions in medical facilities other than an accredited hospital where such medical facilities meet standards prescribed by regulations issued by the Board for the safe and adequate care and treatment of patients.

(1) A married woman does not have to be physically residing in the same place of abode as her husband at the time of termination of her pregnancy under RCW 9.02.070 in order for his consent thereto to be required.(2) A married woman should be regarded as "residing" with her husband to the extent that his consent to a termination of her pregnancy under RCW 9.02.070 is required, where the only reason for his absence from her place of abode is his employment; e.g., military or civil service overseas.(3) If a married couple is living separate and apart either because of the husband's desertion or some other breakdown of the marital relationship, the husband's consent to the termination of his wife's pregnancy under RCW 9.02.070 is not required even though no legal separation (e.g., decree of separate maintenance under RCW 26.08.120) has been granted.

1.RCW 9.02.010 is still unenforceable insofar as it purports, in conjunction with RCW 9.02.060 et seq., to prohibit abortions occurring more than four lunar months after conception but prior to viability.2.Webster v. Reproductive Health Servs., 57 U.S.L.W. 5023 (1989) does not overrule Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973); the effect of Webster is to uphold provisions of Missouri statutes which have no counterparts in Washington statute; thus Roe still renders most of Washington's abortion statute (RCW 9.02.010 through .090) unenforceable.3.The conclusions reached in AGO 1973 No. 7, that Roe rendered several of Washington's abortion provisions unenforceable, remain valid after Webster v. Reproductive Health Servs., 57 U.S.L.W. 5023 (1989); we decline to speculate about the future direction of case law on abortion.4.There is no current law in Washington prohibiting the use of public funds for abortions; Webster v. Reproductive Health Servs., 57 U.S.L.W. 5023 (1989) does not change Washington law in this regard.

Neither chapter 3, Laws of 1970 (Referendum No. 20), nor any other law or regulation currently in effect, allows a pregnancy of a woman to be terminated by any person other than a physician licensed under either chapter 18.71 RCW or chapter 18.57 RCW, or by the pregnant woman herself when following the directions of a physician so licensed.

In view of decisions rendered by the United States Supreme Court in Parenthood of Central Missouri, et al. v. Danforth, 44 L.W. 5197 and Bellotti, et al. v. Baird, et al., 44 L.W. 5221 (1976), neither the parental or spousal consent requirements of RCW 9.02.070, regulating abortions, are currently constitutionally unenforceable.

(1) The requirement of RCW 9.02.070 that an abortion, in order to be noncriminal, be performed upon a married woman only with the consent of her husband, remains presumptively constitutional in the absence of a ruling by the U.S. Supreme Court or the Washington supreme court to the contrary. (2) RCW 9.02.080, which permits a hospital to refuse to allow its facilities to be used in the performance of an abortion, remains presumptively constitutional even as to public hospitals in the absence of a decision by the U.S. Supreme Court or the Washington supreme court to the contrary. (3) A hospital may require that prior to an abortion where the fetus is believed to be in excess of 20 weeks, that an attending physician consult with another physician to determine that the pregnancy has not gone beyond the 28th week or second trimester.